Newman v Predo - [2022] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Newman v Predo [2022] QSC 170

PARTIES:

VICKI ANN NEWMAN

(applicant)

v
JENNIFER LEE PREDO

(respondent)

FILE NO/S:

BS No 6195 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

17 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2022; 12 July 2022

JUDGE:

Burns J

ORDER:

THE ORDERS OF THE COURT ARE THAT:

1. Pursuant to s 6 of the Succession Act 1981 (Qld):

(a)     Jennifer Lee Predo be removed as executor and trustee of the estate of Sylvia May Jacobs;

(b)      the grant of probate issued to Jennifer Lee Predo as executor on 15 April 2019 be revoked and the grant of probate be delivered by Jennifer Lee Predo to the registry of the court by 24 August 2022.

2.       Subject to the formal requirements of the Registrar, letters of administration with the Will of Sylvia May Jacobs be granted to Kent William Dalziel as administrator.

3. Pursuant to s 45(4) of the Succession Act 1981 (Qld), all property of the deceased, Sylvia May Jacobs, vest in Kent William Dalziel as administrator and be deemed to have so vested on 29 November 2018.

4. Pursuant to s 114 of the Land Title Act 1994 (Qld), Kent William Dalziel as administrator be registered as the proprietor of all real property of the deceased, Sylvia May Jacobs, including the property situated at 143 Bellara Street, Bellara in the State of Queensland.

5.       Jennifer Lee Predo deliver all documents in her possession belonging to the estate of Sylvia May Jacobs, deceased, to Kent William Dalziel (care of Estate Lawyers, Level 5, 239 George Street, Brisbane City) by 24 August 2022.

6. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld) and s 101 of the Trusts Act 1973 (Qld), the remuneration of Kent William Dalziel shall be fixed in accordance with such sum as may be assessed by an independent costs assessor in accordance with the Supreme Court Scale (as varied from time to time) and assessed on the indemnity basis, with such remuneration to be assessed at approximately two monthly intervals and, then, on completion of the administration.

7.       The respondent pay the applicant's costs of this application, assessed on the standard basis.

8.       The difference between the applicant's costs of this application assessed on the indemnity basis and the applicant's costs of this application assessed on the standard basis be paid from the estate.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINSTRATORS – REMOVAL AND DISCHARGE – discretion to remove an executor – whether removal of the executor is necessary to ensure the due and proper administration of the estate

Succession Act 1981 (Qld), s 6

Baldwin v Greenland [2007] 1 Qd R 117, followed
Colston v McMullen [2010] QSC 292, cited
Hancock v Rinehart [2015] NSWSC 646, cited
Re Franks [2021] QSC 134, followed
Re Permewan [2021] QSC 151, followed

COUNSEL:

K Kluss for the applicant

The respondent appeared…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newman v Predo

Details

AGLC: Newman v Predo [2022] QSC 170
Case: [2022] QSC 170
Decision Date: 17 August 2022

CaseChat Overview and Summary

In the Supreme Court of Queensland, Newman v Predo was a case brought by the applicant, Kent William Dalziel, against the executor of the estate of the deceased, Sylvia May Jacobs. The executor, Jennifer Lee Predo, was alleged to be mismanaging the estate and not acting in the best interests of the estate and its beneficiaries. The applicant sought her removal as executor and trustee, and for letters of administration with the will to be granted to him. The court was required to determine whether the removal of the executor was necessary to ensure the due and proper administration of the estate.

The court considered the evidence presented by both parties and the provisions of the Succession Act 1981 (Qld). The court found that the executor had failed to properly administer the estate and had acted contrary to the wishes of the deceased. The court found that the removal of the executor was necessary to ensure the due and proper administration of the estate.

In light of the findings, the court ordered that Jennifer Lee Predo be removed as executor and trustee of the estate of Sylvia May Jacobs. The court revoked the grant of probate issued to Jennifer Lee Predo as executor and granted letters of administration with the will to Kent William Dalziel as administrator. The court also ordered that all property of the deceased vest in Kent William Dalziel as administrator and be registered as the proprietor of all real property of the deceased. The court further ordered that Jennifer Lee Predo deliver all documents in her possession belonging to the estate of Sylvia May Jacobs to Kent William Dalziel. The court fixed the remuneration of Kent William Dalziel in accordance with the Supreme Court Scale and ordered that the respondent pay the applicant's costs of this application.

Orders

Orders of the court

THE ORDERS OF THE COURT ARE THAT:

1. Pursuant to s 6 of the Succession Act 1981 (Qld):

(a) Jennifer Lee Predo be removed as executor and trustee of the estate of Sylvia May Jacobs;

(b) the grant of probate issued to Jennifer Lee Predo as executor on 15 April 2019 be revoked and the grant of probate be delivered by Jennifer Lee Predo to the registry of the court by 24 August 2022.

2. Subject to the formal requirements of the Registrar, letters of administration with the Will of Sylvia May Jacobs be granted to Kent William Dalziel as administrator.

3. Pursuant to s 45(4) of the Succession Act 1981 (Qld), all property of the deceased, Sylvia May Jacobs, vest in Kent William Dalziel as administrator and be deemed to have so vested on 29 November 2018.

4. Pursuant to s 114 of the Land Title Act 1994 (Qld), Kent William Dalziel as administrator be registered as the proprietor of all real property of the deceased, Sylvia May Jacobs, including the property situated at 143 Bellara Street, Bellara in the State of Queensland.

5. Jennifer Lee Predo deliver all documents in her possession belonging to the estate of Sylvia May Jacobs, deceased, to Kent William Dalziel (care of Estate Lawyers, Level 5, 239 George Street, Brisbane City) by 24 August 2022.

6. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld) and s 101 of the Trusts Act 1973 (Qld), the remuneration of Kent William Dalziel shall be fixed in accordance with such sum as may be assessed by an independent costs assessor in accordance with the Supreme Court Scale (as varied from time to time) and assessed on the indemnity basis, with such remuneration to be assessed at approximately two monthly intervals and, then, on completion of the administration.

7. The respondent pay the applicant's costs of this application, assessed on the standard basis.

8. The difference between the applicant's costs of this application assessed on the indemnity basis and the applicant's costs of this application assessed on the standard basis be paid from the estate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Newman v Predo [2022] QSC 170
PARTIES:	VICKI ANN NEWMAN (applicant) v JENNIFER LEE PREDO (respondent)
FILE NO/S:	BS No 6195 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	17 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	15 June 2022; 12 July 2022
JUDGE:	Burns J
ORDER:	THE ORDERS OF THE COURT ARE THAT: 1. Pursuant to s 6 of the *Succession Act* 1981 (Qld): (a) Jennifer Lee Predo be removed as executor and trustee of the estate of Sylvia May Jacobs; (b) the grant of probate issued to Jennifer Lee Predo as executor on 15 April 2019 be revoked and the grant of probate be delivered by Jennifer Lee Predo to the registry of the court by 24 August 2022. 2. Subject to the formal requirements of the Registrar, letters of administration with the Will of Sylvia May Jacobs be granted to Kent William Dalziel as administrator. 3. Pursuant to s 45(4) of the *Succession Act* 1981 (Qld), all property of the deceased, Sylvia May Jacobs, vest in Kent William Dalziel as administrator and be deemed to have so vested on 29 November 2018. 4. Pursuant to s 114 of the *Land Title Act* 1994 (Qld), Kent William Dalziel as administrator be registered as the proprietor of all real property of the deceased, Sylvia May Jacobs, including the property situated at 143 Bellara Street, Bellara in the State of Queensland. 5. Jennifer Lee Predo deliver all documents in her possession belonging to the estate of Sylvia May Jacobs, deceased, to Kent William Dalziel (care of Estate Lawyers, Level 5, 239 George Street, Brisbane City) by 24 August 2022. 6. Pursuant to r 638(5) of the *Uniform Civil Procedure Rules* 1999 (Qld) and s 101 of the *Trusts Act* 1973 (Qld), the remuneration of Kent William Dalziel shall be fixed in accordance with such sum as may be assessed by an independent costs assessor in accordance with the Supreme Court Scale (as varied from time to time) and assessed on the indemnity basis, with such remuneration to be assessed at approximately two monthly intervals and, then, on completion of the administration. 7. The respondent pay the applicant's costs of this application, assessed on the standard basis. 8. The difference between the applicant's costs of this application assessed on the indemnity basis and the applicant's costs of this application assessed on the standard basis be paid from the estate.
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINSTRATORS – REMOVAL AND DISCHARGE – discretion to remove an executor – whether removal of the executor is necessary to ensure the due and proper administration of the estate Succession Act 1981 (Qld), s 6 Baldwin v Greenland [2007] 1 Qd R 117, followed Colston v McMullen [2010] QSC 292, cited Hancock v Rinehart [2015] NSWSC 646, cited Re Franks [2021] QSC 134, followed Re Permewan [2021] QSC 151, followed
COUNSEL:	K Kluss for the applicant The respondent appeared…